2023 P Cr (PLP)

SOHAIL NASIR, J.

Bilal and Tahir (appellants) along with Siddique and Allah Ditta faced the trial in a private complaint filed by Muhammad Imran (PW-1) and on conclusion thereof vide judgment dated 28.02.2018 passed by the learned Additional Sessions Judge, Kehror Pacca District Lodhran both were convicted under section 302(b), P.P.C. and sentenced to life imprisonment each. They were directed to pay Rs. 200,000/- (two Lacs) as compensation to the legal heirs of Haq Nawaz (deceased) in terms of section 544-A, Cr.P.C. In default of payment of compensation he was ordered to further undergo fob six months' SI. Benefit of section 382-B, Cr.P.C. was made available to them. By way of same judgment Siddique and Allah Ditta were acquitted from the case.

2. Tahir has assailed his conviction through criminal appeal (735 of 2018) whereas Bilal has approached this Court through criminal appeal (736 of 2018). As both appeals are outcome of one and the same judgment hence being decided together.

3. Facts of the case are that by filing the private complaint on 21.06.2017, Muhammad Imran (PW-1) maintained that on 22.11.2016 his father Haq Nawaz (deceased) received a telephone call from Allah Ditta who asked Haq Nawaz to come to the tube well of Siddique Kanjoo; he was also asked to bring Rs. 40000/- (forty thousand) and to receive his theft bull; he/Muhammad Imran along with his father arrived at the tube well where Allah Ditta was present who raised 'Lalkara' and asked them to stop otherwise he would be killed; in the meantime Bilal (appellant) made a fire with his repeater that hit on the left arm of Haq Nawaz; Allah Ditta also fired a shot with pistol .30 bore that hit on the right thigh of Haq Nawaz; Bilal again fired a shot with 30 bore pistol that caused an injury on the left thigh of Haq Nawaz; finally Siddique fired a shot with .30 bore pistol that hit on the back of knee of Haq Nawaz; on hue and cry Muhammad Amin (PW-2) and Zulfiqar (not produced) attracted at crime scene and witnessed the occurrence; motive was that bull of Nazeer, their close relative was committed to theft and the suspicion was against Siddique and Tahir etc; Haq Nawaz with the support of Nazeer got registered FIR No. 458 of 2016 under section 380, P.P.C. at Police Station Sadar Kehror Pakka district Lodhran and for this reason Haq Nawaz was injured by the assailants.

4. Haq Nawaz was taken to hospital where he was medically examined and later on he started his normal life however on 25.12.2016 he had died.

5. Tahir (appellant) was implicated on the basis of a supplementary statement made by complainant on 05.12.2016. The ultimate version of complainant was that all accused be prosecuted under the charges of 302/324/148/149, P.P.C.

6. It is important to mention here that about the same occurrence First Information Report (FIR) No. 431 on 28.11.2016 was registered at Police Station City Kehror Pakka district Lodhran under the same penal provisions and on the statement of same complainant. In that FIR both appellants and their co-accused were arrested on 01.04.2017.

7. After recording the cursory evidence processes were issued against appellants and their co-accused.

8. A charge under sections 302/148/149, P.P.C. was framed against appellants and their co-accused for which they pleaded not guilty and demanded the trial.

9. In evidence Muhammad Imran (complainant) got his statement recorded as PW-1 who also produced Muhammad Amin/eye-witness (PW-2) and Ghulam Qadir (PW-3).

10. Learned trial court then examined Ameer Ahmad SI/initial Investigating Officer (CW-1), Muhammad Naseem Constable (CW-2), Fayyaz Hussain HC/Moharrar (CW-3), Azhar Abbas ASI (CW-4), Dr. Muhammad Rafique (CW-5), Abid Hussain Patwari (CW-6), Muhammad Aslam Inspector/one of the Investigating Officers (CW-7), Sajjad Mehmood HC/Moharrar (CW-8), Dr. Ahmad Khadim (CW-9) and Dr. Capt. Muhammad Ans (CW-10).

11. After producing various documents the prosecution's evidence was closed.

12. Appellants and their co-accused were called for their examinations under section 342 Cr.P.C. The version of both appellants was as under: - Tahir "I abducted Mst. Mumtaz Mai daughter of Pir Bukhsh wife of Ajmal, who was relative of the complainant. Due to this grudge and on asking of father namely Pir Bukhsh and husband namely Ajmal of said Mst. Mumtaz Mai, complainant falsely involved me in this case. Complainant and PWs are close inter-se. Due to this relationship they made a supplementary statement dated 01.04.2017 to the I.O. to rectify my ' parentage as Muhammad Tahir son of Allah Wasaya instead of Muhammad Tahir son of Allah Ditta." Bilal "I have been involved falsely in this false and frivolous case. Prosecution evidence failed to prove said case against me. Evidence on record revealed that neither I am resident of Kehror Pacca nor complainant and PWs known to me. There was six days delay in registration of FIR and after thought I have been falsely involved in this case just to receive pecuniary benefit and due to relationship with co-accused. I did not injure deceased. I have no grudge, grievance and enmity with Haqnawaz deceased. The case of theft of ox was not registered against me. The PWs are inter-se related. They deposed falsely against me."

13. Both appellants did not opt to appear in terms of section 340(2), Cr.P.C. whereas only Bilal desired to produce defence evidence and for that he only produced certain documents.

14. Learned trial court did not believe prosecution's story to the extent of Siddique and Allah Ditta however while relying the same to the extent of both appellants convicted them accordingly.

15. Learned counsel for appellants maintained that acquittal of two accused Siddique and Allah Ditta who were nominated from day one with specific role of firing on Haq Nawaz has given a legitimate right to the appellants for their acquittal for the reason that when the eye-witnesses have been disbelieved to the extent of Siddique and Allah Ditta, how they can be relied qua the appellants?; statements of two eye witnesses are contradictory; delay in reporting the matter to police has not been properly explained. Learned counsel finally maintained that as prosecution has badly failed to prove its case beyond reasonable doubt therefore appellants are entitled for acquittal.

16. On the other hand learned counsel for complainant and learned Assistant District Public Prosecutor jointly argued that although two accused have been acquitted but that will not give any benefit to appellants because to their extent the learned trial court has believed prosecution's evidence; appellants were nominated in FIR and during investigation at their instances pistol .30 bore and repeater were recovered; Haq Nawaz went to crime scene when he was invited by the appellants which shows that it was a pre-planned occurrence; ocular account has been supported from recoveries and medical evidence. They finally contended that appellants have been rightly convicted by the learned trial court on the basis of well reasoned judgment which requires no interference.

17. HEARD.

18. Muhammad Imran did not deny moving of application (PA) to SHO on 28.11.2016 about the occurrence that had taken place on 22.11.2016 that means the matter was reported to Police with a delay of six days. His application is completely silent about the reasons which were hurdles in his way to inform the Police well in time. Even if delay is ignored, an important fact shall remain in the field that whether it was first information in reality to the Police or the position was otherwise? For that I will refer to the statement of Azhar Abbas ASI (CW-4). He maintained that on 22.11.2016 (date of occurrence) he was posted at Police Station Kehror Pakka; on receipt of information through rescue 15 he arrived at crime scene where he found Haq Nawaz seriously injured; he got prepared his injuries statement (CW-4/A) and shifted him to THQ Hospital Kehror Pakka. He further added that later on he came to know that place of occurrence was not within the territorial jurisdiction of Police Station Sadar Kehror Pakka so he informed the SHO Police Station City in this regard. His entire statement does not show that he found Muhammad Imran or Muhammad Amin at crime scene. At the end of his cross-examination he simply stated that 1 or 2 persons the close relatives of the injured had taken him to hospital. He did not tell names of any of these close relatives and even the injuries statement prepared by him was not disclosing the name of any such relative. The most important fact that was exposed in his cross-examination was that in the injuries statement (CW-4/A) he referred case FIR No. 479/16 under section 324, P.P.C. dated 22.11.2016 at Police Station Sadar Kehror Pakka. When he was asked in this context, his answers were appearing to be unnatural when he responded as under: - "I have mentioned case FIR 479/2016 dated 22.11.2016 offence under section 324, P.P.C. P/S Sadar Kehror Pakka on the police docket as Ex. CW-4/A. The case was got registered because when we reached at THQ Kehror Pakka, the duty medical officer said that he would not entertain this case/injured unless the police docket is provided. So, I informed my police station telephonically that the case FIR be registered and I be informed, so that police docket/injury statement be prepared and presented before the medical officer."

19. In further cross-examination then it transpired that the said FIR number was pertaining to an offence under section 376(i), P.P.C. and not relevant to this case. It means that the first information about the occurrence was received by Azhar Abbas ASI (CW-4) but it was withheld by the prosecution and when its so the court finds no difficulty to hold that the first information was not the one that complainant alleged in FIR got recorded after six days of the occurrence and in the complaint filed before the court.

20. According to FIR Bilal (appellant), Siddique and Allah Ditta (acquitted) were the persons who made firing. Azhar Abbas ASI (CW-4) maintained that on spot inspection he recovered crime empties and those were 6/7 of .12 bore and 3 or 4 of 30 bore which he did not make into sealed parcel however he added that he handed over all the crime empties and blood stained earth to Ameer Ahmad S.I. On the other hand Ameer Ahmad S.I (CW-1) categorically denied that he ever joined Azhar Abbas ASI (CW-4) in the investigation. His complete statement is silent about receiving of any crime empty or blood stained earth from Azhar Abbas ASI (CW-4). Therefore prosecution's story is coming step by step under serious doubts.

21. Allah Ditta according to complainant was the one who made a telephone call to Haq Nawaz (deceased) and then witnesses arrived there. Muhammad Imran (complainant) in his cross-examination replied that CDR of Haq Nawaz was given to Investigating Officer but neither CDR nor any telephone number of Haq Nawaz is there to support the allegations of calling Haq Nawaz by Allah Ditta. This could be the best evidence in support of prosecution's story and in absence thereof it is another challenge faced by it.

22. It is surprising that Allah Ditta who called Haq Nawaz has been acquitted whereas appellants have been convicted in this case. His acquittal which still holds the field as admitted by learned ADPP and learned counsel for complainant has destroyed the basic story so how prosecution can defend the convictions of appellants.

23. Tahir (appellant) was not nominated accused. He was implicated on 05.12.2017 on the basis of a supplementary statement and in court Muhammad Imran (PW-1) and Muhammad Amin (PW-2) alleged that he also made a fire that hit on the back of knee of Haq Nawaz. Neither in FIR nor in complaint was any fire attributed to any of the unknown assailants. Even it is difficult to find out that the unknown persons were having any weapon with them. Whatever the allegations were there in FIR with regard to firing those were to the extent of Bilal, Siddique and Allah Ditta. Therefore both the eye-witnesses first time introduced a fire by Tahir in court which means that they improved their statements. By now it is a settled proposition of law that a witness who makes material improvements during trial, his testimony remains of no worth for prosecution.

24. Haq Nawaz (deceased) remained alive for many days. According to Muhammad Imran his statement was recorded by the Investigating Officer and a video was also made but even here prosecution is badly defeated because these facts are not in existence.

25. Muhammad. Imran and Muhammad Amin eye-witnesses of the case were residing at a distance of 3 or 4 kilometers from crime scene. Acquittal of Allah Ditta has smashed the prosecution's story that Haq Nawaz (deceased) called at tube well by him and in these circumstances Muhammad Imran and Muhammad Amin is proved to be the chance witnesses who could not furnish any reasonable explanation about their presence at crime scene.

26. The final blow in prosecution's case is that Muhammad Siddique and Allah Ditta who were assigned specific fires on the person of Haq Nawaz have been acquitted and said acquittal has not been taken to any exception. It means that statements of two eye-witnesses have been found false or incorrect to the extent of two accused. When two accused similarly placed have been acquitted by disbelieving the statements of two eye witnesses, how they can be relied upon qua the appellants because the Apex Court in case "PLD 2019 SC 527" has been pleased to declare that the rule "falsus in uno, falsus in omnibus" shall be the integral part of our jurisprudence that means if a witness has been disbelieved on one fact, he has to be disbelieved in totality.

27. Finally the recoveries of pistol and repeater at the instances of appellants have no value because these are inconsequential as there is no crime empty in this case.

28. Concluding the discussion made above this Court finds no difficulty to hold that prosecution has baldy failed to prove its case beyond reasonable doubt against appellants hence both appeals are allowed. Impugned judgment is set aside. Both appellants are acquitted from the case. Tahir (appellant) is on bail. His surety is discharged from terms and conditions of bail bonds. Bilal (appellant) is in custody. He shall be released forthwith if not required in any other case. The case property shall be dealt with in the same manners as directed by the learned trial court. JK/T-20/L Appeals allowed.